Fear of reprisals spells the death-knell for job references


When it comes to job references, all an employer wants to know is whether a previous employer has formed a good opinion of a former employee or not.

But fears of legal reprisals have rendered the reference process almost worthless, as more employers are choosing the safe option and saying little about their departing staff - at least on paper.

A recent survey by specialist law firm Employment Law Advisory Services (ELAS) revealed the extent of the problem for SMEs by highlighting the fact that only one in ten firms in Britain are happy to write a full reference for former staff because of the overwhelming threat of litigation.

The number is likely to even less in larger corporations. Indeed, many leading employers, particularly those in financial institutions, are abandoning the time-honoured practice altogether and now limit their 'references' to nothing more than a confirmation of name, job title, and date of employment.

Head of personnel at ELAS Pam Rogerson says, "The old style of written reference from a former employer used to be a firm's best guide as to a candidate's past character, but that is becoming a thing of the past as businesses refuse to say anything they fear could come back to haunt them."

With data protection and employment laws firmly in place their fears are not groundless. Employers who provide a reference that is seen to be less than 'full, fair and accurate' could find themselves facing an employment tribunal.

Equally, a positive reference given in the hope of ensuring the trouble free departure of an employee could be interpreted as an attempt to mislead or deceive the candidate's new employer, and again can lead to the courtroom.

On the other hand, employers are not legally obliged to give a reference at all, but could still find themselves facing legal action from an employee who feels they have been disadvantaged in the application process by the absence of a reference.

It is not surprising that employers are finding other ways of finding out what they need to know about prospective employees without putting themselves at risk of litigation.

"Given the huge costs of recruitment, you have to minimise the risks of hiring the wrong person," said Steve Huxham, chairman of the Recruitment Society.

"But if you can't get anything worthwhile other than the basic facts on a piece of paper, then you have to get on the telephone and source the information you need verbally."

But how realistic is the threat of being hauled off an employment tribunal, and are employers simply overreacting?

Adrian Marlow, managing director of employment law firm Lawspeed plays down the idea.

"I think it is unlikely that a person would bring a claim just on the basis of a job reference. It is more likely to happen where there have been prior issues or disagreements," he said.

There are also situations where the justification for a poor reference is less than clear. For example when a member of a childcare support team within a local authority gave advice to a co-worker whose actions subsequently resulted in a complaint from the parents, it was the social worker who offered the initial advice who got a poor reference, even though they had not been the person in charge of the case.

"It raises the issue of whether or not the employer, in this case the council, had acted in bad faith," says Marlow.

Even sticking to the facts is not without risk because, presented in the wrong way, even these can be construed as misleading. Simply stating that an employee had had several periods of sickness absence in a given year without putting them into context could mean an employer falling foul of the Disability Discrimination Act. A record of poor time keeping, however well documented, can also be seen as misleading.

According to Steve Huxham: ''If, as an employer, you are wearing your ethical moral hat, you wouldn't want to prejudge someone on an issue that they may have perfectly good explanation for and which you have only heard one side of.

"On the other hand, you could assume that if someone has a long history of turning up late for work, the likelihood is they will continue that behaviour in another employment. It is something that as a recruiter, an employer would want to know about, but would not want to include in any reference they were asked to give."

But Adrian Marlow believes that employers can still get the message across on paper and keep themselves out of the courtroom by sticking to the facts.

He says, "Don't provide information unless it is accurate, and don't divulge any additional information that you don't need to. If in doubt, leave it out."